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Protecting Copyright and Innovation in a Post-Grokster World

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Protecting Copyright and Innovation in a Post-Grokster World S. HRG. 109–1041 PROTECTING COPYRIGHT AND INNOVATION IN A POST-GROKSTER WORLD HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE ONE HUNDRED NINTH CONGRESS FIRST SESSION SEPTEMBER 28, 2005 Serial No. J–109–40 Printed for the use of the Committee on the Judiciary ( U.S. GOVERNMENT PRINTING OFFICE 34–113 PDF WASHINGTON : 2009 For sale by the Superintendent of Documents, U.S. Government Printing Office Internet: bookstore.gpo.gov Phone: toll free (866) 512–1800; DC area (202) 512–1800 Fax: (202) 512–2104 Mail: Stop IDCC, Washington, DC 20402–0001 VerDate Nov 24 2008 09:03 Mar 04, 2009 Jkt 047297 PO 00000 Frm 00001 Fmt 5011 Sfmt 5011 S:\GPO\HEARINGS\34113.TXT SJUD1 PsN: CMORC COMMITTEE ON THE JUDICIARY ARLEN SPECTER, Pennsylvania, Chairman ORRIN G. HATCH, Utah PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts JON KYL, Arizona JOSEPH R. BIDEN, JR., Delaware MIKE DEWINE, Ohio HERBERT KOHL, Wisconsin JEFF SESSIONS, Alabama DIANNE FEINSTEIN, California LINDSEY O. GRAHAM, South Carolina RUSSELL D. FEINGOLD, Wisconsin JOHN CORNYN, Texas CHARLES E. SCHUMER, New York SAM BROWNBACK, Kansas RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma DAVID BROG, Staff Director MICHAEL O’NEILL, Chief Counsel BRUCE A. COHEN, Democratic Chief Counsel and Staff Director (II) VerDate Nov 24 2008 09:03 Mar 04, 2009 Jkt 047297 PO 00000 Frm 00002 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\34113.TXT SJUD1 PsN: CMORC C O N T E N T S STATEMENTS OF COMMITTEE MEMBERS Page Cornyn, Hon. John, a U.S. Senator from the State of Texas ............................... 4 prepared statement .......................................................................................... 88 Feinstein, Hon. Dianne, a U.S. Senator from the State of California ................. 13 prepared statement .......................................................................................... 90 Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont .................... 2 prepared statement .......................................................................................... 93 Specter, Hon. Arlen, a U.S. Senator from the State of Pennsylvania ................. 1 WITNESSES Aydar, Ali, Chief Operating Officer, SNOCAP, Inc., San Francisco, California . 24 Lemley, Mark A., William H. Neukom Professor of Law, Stanford University Law School, and Director, Stanford Program in Law, Science and Tech- nology, Stanford, California ................................................................................ 22 Peters, Marybeth, Register of Copyrights, Library of Congress, U.S. Copyright Office, Washington, D.C. ..................................................................................... 5 Roe, Marty, Lead Singer, Diamond Rio, Nashville, Tennessee ............................ 16 Shapiro, Gary J., President and Chief Executive Officer, Consumer Elec- tronics Association, Arlington, Virginia ............................................................. 20 Sherman, Cary, President, Recording Industry Association of America, Wash- ington, D.C. ........................................................................................................... 18 Yagan, Sam, President, MetaMachine, Inc., New York, New York ..................... 25 Yang, Debra Wong, United States Attorney, Central District of California, and Chair, Attorney General’s Advisory Committee on Cyber/Intellectual Property, Los Angeles, California ....................................................................... 7 QUESTIONS AND ANSWERS Responses of Ali Aydar to questions submitted by Senator Specter ................... 33 Responses of Mark A. Lemley to questions submitted by Senators Specter, Leahy and Kennedy ............................................................................................. 34 Responses of Marybeth Peters to questions submitted by Senators Specter and Leahy ............................................................................................................. 38 Responses of Gary Shapiro to questions submitted by Senator Specter ............. 46 Responses of Cary Sherman to questions submitted by Senator Specter and Leahy ..................................................................................................................... 48 Responses of Sam Yagan to questions submitted by Senator Specter and Leahy ..................................................................................................................... 53 Responses of Debra Wong Yang to questions submitted by Senator Specter and Leahy ............................................................................................................. 64 Questions submitted by Senator Leahy to Gary J. Shapiro (Note: Responses to the questions were not available at the time of printing.) ........................... 77 SUBMISSIONS FOR THE RECORD Aydar, Ali, Chief Operating Officer, SNOCAP, Inc., San Francisco, California, statement .............................................................................................................. 78 Center for Democracy and Technology, Washington, D.C., statement ................ 83 Lemley, Mark A., William H. Neukom Professor of Law, Stanford University Law School, and Director, Stanford Program in Law, Science and Tech- nology, Stanford, California, statement ............................................................. 95 Peters, Marybeth, Register of Copyrights, Library of Congress, U.S. Copyright Office, Washington, D.C., statement .................................................................. 101 (III) VerDate Nov 24 2008 09:03 Mar 04, 2009 Jkt 047297 PO 00000 Frm 00003 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\34113.TXT SJUD1 PsN: CMORC IV Page Roe, Marty, Lead Singer, Diamond Rio, Nashville, Tennessee, statement ........ 122 Scudieri, Scooter, Artist, Internet’s First Rock Star, Shepherds Town, West Virginia, statement .............................................................................................. 125 Shapiro, Gary J., President and Chief Executive Officer, Consumer Elec- tronics Association, Arlington, Virginia, statement .......................................... 127 Sherman, Cary, President, Recording Industry Association of America, Wash- ington, D.C., statement ........................................................................................ 141 Yagan, Sam, President, MetaMachine, Inc., New York, New York, statement . 147 Yang, Debra Wong, United States Attorney, Central District of California, and Chair, Attorney General’s Advisory Committee on Cyber/Intellectual Property, Los Angeles, California, statement .................................................... 157 VerDate Nov 24 2008 09:03 Mar 04, 2009 Jkt 047297 PO 00000 Frm 00004 Fmt 5904 Sfmt 5904 S:\GPO\HEARINGS\34113.TXT SJUD1 PsN: CMORC PROTECTING COPYRIGHT AND INNOVATION IN A POST-GROKSTER WORLD WEDNESDAY, SEPTEMBER 28, 2005 UNITED STATES SENATE, COMMITTEE ON THE JUDICIARY, Washington, DC. The Committee met, pursuant to notice, at 9:30 a.m., in room SD–226, Dirksen Senate Office Building, Hon. Arlen Specter, Chairman of the Committee, presiding. Present: Senators Specter, Cornyn, Leahy and Feinstein. OPENING STATEMENT OF HON. ARLEN SPECTER, A U.S SENATOR FROM THE STATE OF PENNSYLVANIA Chairman SPECTER. With all this quiet in the Judiciary Com- mittee hearing room, without even the pounding of the gavel, it must signify that you are ready to begin this hearing. I haven’t heard such an orderly assemblage in the 25 years I have been here before the Chairman signifies the start, but you saw it was 9:30 and recognized that, by precedent, this hearing is underway. Our hearing today focuses on the recent Supreme Court decision in the case of MGM v. Grokster, and as articulated by the Court, the subject is the, quote, ‘‘tension between the competing values of supporting creativity through copyright protection and promoting technological innovation by limiting infringement liability.’’ The subject of copyright infringement and the promotion of cre- ative and artistic endeavors was the focus of the Founding Fathers in Article 1, section 8, of the Constitution, where Congress was ex- plicitly granted the power to regulate copyrights and patents for the promotion of exclusive rights to authors’ creative activities on literary, dramatic, musical, artistic or intellectual works. The Congress has not acted on the issue of the Internet and copyright infringement and secondary liability, but has really left it up to the court, which, candidly, is a major concern of mine. Con- gress has much more capabilities to deal in this field than does the court. We have the capacity to hold hearings, to make fact-findings, to listen to the competing complex issues on all sides, contrasted with the more limited approach of the court in the judicial pro- ceedings. But so often, as is the case, the Congress abdicates or defers to the court. We had the hearings on Guantanamo several weeks ago where, notwithstanding the express Congressional responsibility, nothing was done and the court came down with a series of opin- ions in June of 2004 and we are really on the sidelines, although we ought to be front and center. (1) VerDate Nov 24 2008 09:03 Mar 04, 2009 Jkt 047297 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\34113.TXT SJUD1 PsN: CMORC 2 So this is a very important hearing, and in the absence of a con- stitutional issue, which we really don’t have, Congress really ought to be making the judgment here. It goes without saying that we are very,
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